Article 8 ECHR and Criminal Convictions – UK Immigration Case Study

The joint cases of R (P & Ors) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 321, when seen in the light of Article 8 ECHR and criminal convictions, deal with the balance between the rehabilitation of offenders and the need for public safety. The Court of Appeal dismissed the appeals of the Secretary of State (SoS) in criminal records checks cases on the basis that the disclosure requirements of criminal convictions were insufficiently safeguarded to be lawful, and were disproportionate in their effect when balanced with Article 8 ECHR.

Article 8 ECHR and Criminal Convictions – Public Interest Policy

Offender rehabilitation is aimed at allowing individuals who have certain criminal convictions, cautions or reprimands to essentially ‘put their past behind them’ and be free from any references to their previous actions. Under the terms of the Rehabilitation of Offenders Act 1974, certain criminal convictions can be ‘spent’ after the lapse of a specified period of time. The amount of time for the conviction to become spent depends on the sentence which had previously been imposed.

However, there is a statutory scheme in relation to the disclosure of convictions as employers need to obtain a Criminal Record Certificate (CRC) or an Enhanced Criminal Record Certificate (ECRC) from potential employees who have previously come into conflict with the law. This is especially in instances where the employment involves working with or around children or other vulnerable people. The scheme originally required a CRC or ECRC to disclose all convictions, cautions and reprimands, regardless if they were spent or not. The scheme was revised by the 1997 Act Amendment Order and the 1975 Order, so it no longer calls for the disclosure of every spent conviction, caution or reprimand. Disclosure is only needed in exceptional circumstances.

The admission of prior criminal convictions, regardless of how long ago the event occurred, may still have a negative effect on employability as well as with regards to UK immigration and visa applications. Nonetheless, our team of specialist immigration solicitors and barristers have a great deal of experience in dealing with complex cases involving Applicants who have been in trouble with the law.

Details of the Case on Article 8 ECHR and Criminal Convictions

One of the cases considered in the judgement is R (T) v Chief Constable of Greater Manchester Police and others [2013] EXCA Civ 25; [2013] 1 WLR 2515 (“T v CCGMP”). It concerned two appeals which challenge the compatibility of the scheme under Article 8 ECHR. The first appeal was brought by a young man who was warned (the equivalent to a caution for a minor) when he was 11 years old in relation to the theft of two bicycles. Eight years later he needed an ECRC in relation to enrolment for a Sports Studies Course whereby his previous warnings were disclosed. The second case was that of a 41 year old man who was denied employment because of the disclosure of the fact that he had been cautioned for the theft of a pack of false fingernails eight years earlier.

Lord Dyson MR specified that the disclosure of information must be relevant to the purpose of enabling employers to assess the suitability of the individual. Relevance must depend on a range of factors which include the seriousness of the offence, the age of the offender at the time of the offence, the sentence that was imposed, the amount of time that has elapsed since the offense was committed and whether the offender has reoffended.

The court unanimously concluded in the case of T v CCGMP that the scheme violated Article 8 ECHR on the grounds that it went further than necessary to accomplish the statutory objective, was disproportionate, and failed the test of being necessary in a democratic society.

The disclosure of any previous criminal convictions may have an adverse impact on any UK immigration and visa application. Therefore it is recommended to seek legal representation, such as with our team of specialist immigration lawyers, in order to have the greatest chance of success with your UK immigration and visa application.

The Court of Appeal decision can be found at: R (P & Ors) v SSHD [2017] EWCA Civ 321 LEXVISA Immigration Solicitors London.

Using Legal Representation for Applications Involving Article 8 ECHR and Criminal Convictions

Legal representatives are qualified to advise you on immigration law and your immigration status. It is possible to instruct an immigration and visa legal representative to submit a UK immigration and visa application despite having any criminal convictions or adverse immigration history.

Caseworkers at the Home Office are trained to reject applications which are improperly prepared, for example by failing to provide the correct supporting evidence. In order to ensure your application succeeds, all necessary documents must be provided.

This can be a significant administrative task and you will need to submit the correct documentary evidence. The UK Immigration Rules are complex and a legal representative can help ensure that your application meets the Immigration Rules.

Successful Applications Involving Article 8 ECHR and Criminal Convictions

Our team of solicitors and barristers are specialist immigration lawyers who act in your best interest. We offer a client-tailored approach from the outset. From the very first meeting, we will be able to advise you in respect of your immigration status and the merit of your visa and immigration application before your matter even reaches the Home Office UK Visa & Immigration department. We can assist you with the preparation of your immigration and visa application and ensure that you meet all the requirements of the relevant rules.

LEXVISA Solicitors and Barristers are based in the legal epicentre of London, just across the road from the Royal Courts of Justice in order to ensure we get the best results for our clients.  We are minutes away from the Immigration and Asylum Tribunal, the Royal Courts of Justice and other central London courts.

Preparation is the key to successful immigration applications. Our UK immigration and visa solicitors are here to guide you through the complex immigration rules and requirements. If you wish to meet one of our lawyers, please call our Immigration Team so we can assess your case and arrange your legal consultation.

Contact our London immigration solicitors on 02071830570 or complete our contact form.

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